- (1.) Appellant no. 1, Kachchh Jal Sankat Nivaran Samiti, claims to be a non- political organization established with the object amongst others to work to alleviate the District of Kutch of its perennial water scarcity and to mitigate the resultant problems faced by the inhabitants and the residents. Other appellants have also interest in the cause espoused by appellant no. 1. Aggrieved by the meager allocation of water from Sardar Sarovar Project to the District of Kutch they approached the Gujarat High Court in a public interest litigation inter alia praying for issuance of a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent, the State of Gujarat and its functionaries to allocate more water from Sardar Sarovar Project to the District of Kutch. By the impugned order the prayer made by the appellants has been rejected and against the dismissal of the writ petition they are before us with the leave of the Court.
(2.) Water is essential for survival of universe. It is not available for human use in plenty and hence disputes existed between various States for its sharing. In the year 1969, the Government of India in exercise of its power under Section 4 of the Inter-State Water Disputes Act, 1956 constituted Narmada Water Disputes Tribunal (hereinafter referred to as "the Tribunal"), to decide the Inter-State dispute of sharing of water of river Narmada. The Tribunal handed over its award on 16th of August, 1978. As provided under Section 5(3) of the Inter-State Water Disputes Act, (hereinafter referred to as "the Act"), the Union of India and the States of Gujarat, Madhya Pradesh, Maharashtra and Rajasthan made references. Those references were heard by the Tribunal which gave its final award on 7th of December, 1979. It was published on 12th of December, 1979 in the Extraordinary Gazette of the Government of India. While giving the award, the Tribunal considered the issue pertaining to allocation of water, height of the dam, hydrology and other related issues. As regards the issue of allocation of Narmada water at Sardar Sarovar Dam site, the Tribunal allocated 9.00 Million Acre Feet (for short "MAF") to the State of Gujarat whereas 18.25 MAF, 0.50 MAF and 0.25 MAF were allocated to the States of Madhya Pradesh, Rajasthan and Maharashtra respectively. It is relevant here to state that the State of Gujarat laid claim for 20.73 MAF of water out of the total demand of 22.02 MAF of water before the Tribunal, which included 6.57 MAF water for reclaiming and/or irrigating 12.17 lakh acres of land of the District of Kutch under Zone XI-C, Banni and Ranns. However, the claim of the State of Gujarat was turned down by the Tribunal on its finding that these areas are barren and sparsely populated. Its soil is highly saline having very low permeability and vertical permeability of nearly nil. It has high ground water table and impervious layer near the ground water surface, high evaporation and low rainfall. In this way the Tribunal rejected the claim of State of Gujarat for irrigating 11 lakh acres of land in Banni and Ranns areas and as stated, allocated 9.00 MAF of water. How the water allocated to each of the States shall be utilised was left to the choice of the State Government. As it was not a case of plenty, the State Government of Gujarat out of 9.00 MAF water, allocated 7.94 MAF water for irrigation and 1.06 MAF water for domestic and industrial use and because of the limited water allocation, the proportionate water requirement for Kutch region was worked out as 0.15 MAF.
(3.) The appellants are aggrieved by aforesaid meager allocation of water and, according to them, the State Government has not distributed the water keeping in mind the Directive Principles of the State Policy as enshrined under Article 39(b) of the Constitution of India which inter alia obliges the State to make the policy in such a way that the material resources of the community are so distributed as best to subserve the common good. Appellant further contended that by meager allocation of water, the State Government also did not carry out its obligation as mandated under Article 38(2) of the Constitution which casts a duty on it to strive to minimise the inequalities in income and make an endeavour to eliminate inequalities in the status, facilities and opportunity amongst individuals and groups of people residing in different areas of the State. The plea of the State Government is that out of the limited water allocated to it by the Tribunal, it had made the best use of that. It has also been pointed out that the allocation complained of is not static and shall vary from time to time and the quantity of water allocated for Kutch District may increase. It has also been averred that while making allocation to Kutch District, the State Government has kept in view the interest of all concerned and also the factors relevant for the purpose. According to the respondent- State Government, it laid a claim for 20.73 MAF of water out of the total demand of 22.02 MAF water before the Tribunal which included 6.57 MAF for Kutch, but only 9.00 MAF water was allocated and the award of the Tribunal having been approved by the Supreme Court, the State Government has to distribute the limited water allocated to it. It has also been pointed out that the allocation made for the District of Kutch has been increased in later years.;